Volume 102 — Iowa Reports

— Hon. M. A. Roberts, Judge. . This is an appeal on.the part of the plaintiff from the action of the district court in dismissing his appeal from the defendant board of equalization. It is stipulated by the parties that the finding of facts contained in the decree of the court shall be treated as embracing all of the facts, for the purposes of this appeal.

C. M. Waterman, Judge. Plaintiff, a school district known as the “District Township of Sheridan,” asks a writ of mandamus commanding the defendant treasurer to pay to plaintiff one-half of the tax collected by defendant on property assessed under chapter 62, Acts of the Twenty-fifth General Assembly, for the year 1894, in said township of Sheridan.

<p>Eminent Domain: acceptance of damages: Trial de novo. The acceptance by a land owner of the amount of damages allowed him by the sheriff’s jury in proceedings to condemn a railroad right of way, and the concealment of such fact, will not prevent him from recovering a larger award on appeal, where the railroad company procures an appeal on its own account because it is dissatisfied with the amount of the award, although Code, section 1256, provides that acceptance by the land owner of the damages awarded shall bar his right to appeal.</p> <p>Error in Taking Evidence: cured by instructions. In a proceeding to condemn a right of way, certain witnesses considered the fact that the proposed right of way would destroy a connection between two tracts of land by crossings under bridges in the highway. The court charged that the land owner had no right, without the consent of the supervisors, to so connect the two tracts, “and you should not consider that he had any such right, in arriving at your verdict.in this case,” and that “any evidence upon that subject is withdrawn from your consideration.” Held, that the evidence was without prejudice to the defendant.</p>

— Hon. George W. Wakefield, Judge. Action at law, to recover one-half the value of a party wall, erected by plaintiff, and thereafter used by the defendant. Defendant claims that he purchased the property occupied by him, after use had been made of the wall, without notice of any claim in plaintiff for the value thereof; and further pleads the statute of limitations. Trial to the court without a jury. Judgment for plaintiff, and defendant appeals.—

— Hon. M. J. Wade, Judge. Action to recover damages for slanderous words, alleged to have been spoken by the defendant of and concerning the plaintiff, accusing him of stealing cattle. The petition- is in five counts, some alleging the speaking of the same words at different times, in the hearing of different persons, and others alleging the speaking of other words, at other times, in the hearing of other persons.

— ITon. Feed O’Donnell, Judge. Action at law to recover damages resulting from a fire set out by a locomotive while being operated on defendant’s line of road. Trial to a jury. Verdict and judgment for plaintiff. Defendants appeal.—

— ITon. Porter W. Burr, Judge. Action at law to recover the possession of seven promissory notes signed by various parties, and made payable to one John Bush. It is claimed that Bush took the notes as agent for the plaintiff, in the sale of agricultural implements.

— Hon. George W. Wakefield, Judge. Plaintiff claims that on April 28, 1890, he was in possession of certain real estate in the town of Kingsley, Iowa, and the building situated thereon, and the furniture therein, under a lease to him from one Craig, of date October 5, 1886, and under a contract for the sale of the property, executed to Annie Mathews, plaintiff’s wife, by the defendants; that on April 28, 1890, and when plaintiff had not failed in any respect to perform his…

— Hon. H. 0. Traverse, Judge. M. F. Winters died January 21, 1895. He left, him surviving, his widow, Catherine Winters, and his brother and only heir, John C. Winters. The widow offered for probate a paper purporting to be his last will, leaving to her all his property, and naming helas executrix without bond. The brother filed objections thereto, alleging want of testamentary capacity and the exercise of undue influence.

— Hon. Soott M. Ladd, Judge. The defendants are sureties on a bond made by one C. E. Dennis to the plaintiff company.

— Hon. William P. Wolf, Judge. This is an action in equity to restrain the issuance of bonds by the city of Cedar Rapids. The defendants are the mayor, the finance committee of the city council, the city council, the city treasurer, and the city itself. The city proposed to issue two series of bonds, each bond to be for one thousand dollars, and to draw four and one-half per cent, interest, payable semi-annually. All of the bonds were to mature in twenty years.

— Hon. C. P. Holmes, Judge. W. A. Pickenbrock, administrator, filed his application, showing as follows: That deceased left as his only heirs Amelia Pickenbrock, his widow, Emma Reynold, Gus W. Pickenbrock, Nettie McCauley, and W. A. Pickenbrock; that the estate is nearly ready to close; that the administrator has sold certain real estate, and that, when all the money is paid thereon, there will be three thousand five hundred dollars to distribute, and that the share of each…

— Hon. T. M. Pee, Judge. action at law to recover back money paid on a contract for the purchase of real estate. The trial court sustained a demurrer to defendant's answer, and a motion to strike his amended answer from the files. Defendant appeals. —

— Hon. Gr. W. Wakeeield, Judge. Action at law to recover an amount alleged to be due on a certain judgment, or on bonds issued for its payment. There was a trial by the court, and a judgment in favor of the defendants for costs. The plaintiff appeals. —

— Hon. W. I. Babb, Judge. Action at law against the city of Ottumwa and the Ottumwa Opera-House Company to recover for personal injuries alleged to have been caused by their negligence. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant the city of Ottumwa, appeals. —

— Hon. A. N. Hobson, Judge. This is an action in equity begun August 10, 1896, to restrain the defendants from maintaining an alleged liquor nuisance on a certain lot in the town of West Decorah, Iowa.

— Hon. Pred O’Donnell, Judge. Plaintiff made a contract with J. T. Elliott, to construct for him a house and barn, for the agreed price of ten thousand dollars, in accord with certain plans and specifications, and to complete the same by January 1,1882.

— Hon. Ben McCoy Judge. Action at law upon a policy of fire insurance. Defense: Former adjudication, another suit pending, and a contract limitation upon the suit. Trial to a jury; verdict and judgment for plaintiff; and defendant appeals. —

<p>2 3 Husband and Wife: privileged communications. The rule that statements made in the hearing of others by a husband or wife as to conversations between them are admissible does not apply to testimony of a spouse given on a former trial, though in the pres, ence and without the objection of the other.</p> <p>2 3 Waiver: Failure to object. The right of a wife to object to her . husband testifying as to communications between them (Code, section 3643) in an action against her, is not waived by failure to object to his testifying as a witness for the adverse party on a former trial of the action, if objection is made when it is attempted to use such testimony on a second trial.</p> <p>3 3 Agency of Husband. The fact that a husband was agent for his wife in respect to the transactions sought to be inquired about does not make him competent to testify against her as to his relation to her as such agent; Code, section 3642, providing that neither spouse can be examined as to any communication between them.</p> <p>6 Same. Agency of a husband for his wife in executing a mortgage to her to secure a loan is not shown, so as to charge her with his fraudulent intent in so doing, merely by her testimony that she always expeeted him to secure her, and intended to be secured.</p> <p>4 Mortgage: description. A mortgage of “all notes and books of account and the claims represented thereby,” sufficiently describes the property mortgaged, as between the parties.</p> <p>5 Cure by delivery. A defective description of personality in a mortgage is cured by subsequent delivery of the personality to the mortgagee, as against the creditors of the mortgagor who had no right or interest in the property at the time of the delivery.</p> <p>1 Issue on Garnishment: recalling garnishee. Plaintiff’s motion for leave to further examine the garnishee, made on a jury trial of issues joined on the garnishee’s examination, is properly denied, since new issues might be opened, and the examination of the garnishee is not a matter for the jury.</p>

— Hon. C. M. Waterman, Judge. In an action for partition of certain lots in the city of Clinton, the district court decreed that the plaintiffs were the owners of an undivided two-thirds thereof, and the defendant of the remaining one-third, and, in the adjustment of the equities, allowed for rents and profits up to the time of the trial, September 19,1892.

— Hon. George W. Wakeeield, Judge. Suit in equity to recover for taxes paid by plaintiff and its assignors upon certain lands in Wood-bury county, the title to which at the time the taxes were paid being in dispute, and finally found by this eourt to be in defendant’s grantors (see 72 Iowa, 508, 84 N. W. Rep. 304), this decree being affirmed by the supreme court of the United States (143 U. S. 38, 12 Sup. Ct. Rep. 362).

— Hon. 0. D. Goldsmith, Judge. Action at law to recover for services alleged to have been rendered by the plaintiff in finding a purchaser for land. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals.—

<p>Appeal from Justice: size of district court judgment: Costs. In determining whether a judgment for plaintiff on his appeal to the district court is more favorable to him than his judgment in the justice’s court, so as to exempt him from payment of costs of appeal (Code, section 3592), interest on the judgment in the justice’s court, at the rate fixed therein, from its date to the date of the second judgment, must be included to ascertain the size of the justice’s judgment.</p>

— Hon. F. W. Eichelberger, Judge. The defendant is accused in the indictment of larceny by embezzlement. From judgment of conviction, sentencing him to serve a term of one year in penitentiary at Ft. Madison, he appeals. —

— Hon. Z. A. Church, Judge. Action in equity for the partition of real estate and for an accounting. There was hearing on the merits, and. a decree for the plaintiff. The defendant appeals. — Modified and Affirmed.

<p>Appeal from Franklin District Court. — Hon. S. M. Weaver, Judge.</p> <p>Plaintiees, creditors of the Brule County Bank, of Chamberlain, S. D., bring this action at law to charge the defendants, respectively, with a balance unpaid on stock of said Brule County Bank owned by each of them. The case was tried to the court, and a 3 udgment rendered in favor of the plaintiffs. Defend* ants appeal. —</p>

<p>Appeal from Black Hawk District Court. — Hon. A. S. Blair, Judge.</p> <p>Hannah Halbfass, a citizen of Iowa, died seized of certain lots in La Porte City, and one hundred and twenty acres of land near there, In her will she devised such property to Caroline Doehrel, of Erie, Pa., and Heinrich Hillmer and Wilhelmina Prellburg, of Hanover, Germany, share and share alike. She died February 8, 1892, and her will wa:; admitted to probate March 15 of the same year, and afterwards the title of each devisee to an undi vided one-third of the property was confirmed by a.decree of the court in an action to quiet title. Wilhelmina Prellburg was a widow, and died December 11, 1893, leaving, her surviving, three sons, Heinrich, August, and Christian Prellburg, who are also residents of Hanover. Her will, admitted to probate in Germany, was not executed as required by the laws of this state, and no claim is made thereunder. She also left the following next of kin, residents and citizens of the United States: The plaintiff and Louisa Sindlinger, sisters of deceased, and the other appellants, who are sons of a deceased brother. This is an action for partition, and the only question involved is whether the undivided one-third of the property which belonged to Wilhelmina Prellburg descends to her sons in Germany, or to her next of kin in-this country. Decree was entered declaring the sons entitled to the property. The next of kin, except plaintiff, appeal.—</p>

<p>Appeal from Clinton District Court. — Hon. P. B. Wolfe, Judge.</p> <p>Adam Wilcke died intestate in 1891 in Clinton county, Iowa, seized of eighty acres of land, which he acquired in 1877, while a non-resident alien. He became a citizen of the United States in 1882. He left surviving him, as his widow, the defendant Isabella Wilcke, but no issue. The parents of Adam Wilcke died in Germany prior to his death, and it seems to be conceded that they were incapacitated to inherit real estate by the law of this state. Adam Wilcke also left surviving him the plaintiff, Ludwig Wilcke, a brother of the full blood, Christian Wilcke, a brother of the half blood, and the heirs of certain other brothers of the half blood, whom it is unnecessary to name. The plaintiff and all the other survivors, except the widow, were, at the death of Adam Wilcke, aliens, and residents of Waldeek, Germany. Christian Wilcke and the heirs of the other brothers of the half blood are made parties defendant to this suit. The action is for the partition of the eighty acres of land left by Adam Wilcke. The plaintiff represents in his petition that the widow is entitled to an undivided one-half of the land; that he, as brother of the full blood, is entitled to an undivided five-sixteenths; that Christian Wilcke, a surviving brother of the half blood, is entitled to an undivided one-sixteenth; and the heirs of deceased brothers of the half blood to proportionate shares. By an amendment to the petition, the plaintiff pleaded a treaty between the United States and the king of Prussia, because of which it is claimed that the non-resident alienage of the parties does not defeat their right of inheritance. The petition asks a confirmation of the shares in accordance with the averments, and for partition accordingly. The widow alone answers. She pleads the facts as to the non-resident alienage and the decease of the parents of Adam Wilcke, and that the other defendants and the plaintiff “would become entitled to inherit, if at all, only by tracing their rights of inheritance through the said father and mother of said Adam Wilcke.” She further pleaded facts to show that the land in question was incumbered by mortgage at the death of Adam Wilcke, which, under the belief that she owned all of the land, she had paid off, and asked, if any part should be found to belong to the other claimants, that the amount she had so paid should be paid therefrom. In reply, the plaintiff pleaded that, since the death of Adam Wilcke, the widow has occupied and received the rents of the premises entire, aud asked that the value thereof be deducted from the amount due because of the discharge of the mortgage lien on the land. The district court found as facts that the plaintiff and the defendants, except Isabella Wilcke, were subjects of Prussia, and of the king of Prussia, at the time of the death of Adam Wilcke, and the plaintiff has, since the death of Adam Wilcke, removed to, and is now residing in Iowa, and that partition of the land could not be equitably made. It confirmed the shares as alleged and asked by plaintiff; allowed the widow’s claim for disbursements to discharge the mortgage lien from the land, after deducting the amount of the rents of the land therefrom; and ordered a sale of the land, and a distribution of the proceeds in accordance with the judgment as bo shares. The defendant Isabella Wilcke appealed. —</p>

<p>Appeal from, Cass District Court. — Hon. N. W. Maoy, Judge.</p> <p>Suit in equity to partition certain real estate theretofore owned by Harrison Bruce, deceased. The plaintiffs each claim to own an undivided one-sixth of a part, of the property, and an undivided third of the remainder, by inheritance from the said Harrison Bruce. Defendants deny the plaintiff’s title, plead title in themselves, the statute of limitations, laches, and certain other defenses, which it will not be necessary to notice. The lower court dismissed the plaintiff’s petition, and they appeal. —</p>

— How. P. W. Burr, Judge. The defendant was indicted and convicted of fraudulent banking, and sentenced to be confined in the state penitentiary for two years and six months, and to pay costs. He appeals. — The indictment does not in a specific or other manner aver or state whom the money alleged to have been deposited belonged to, or who was the owner of the same, or who was entitled to the possession of said money. State v. McConhey, 20 Iowa, 576; 1 Wharton, Crim.

— Hon. 0. M-. Waterman, Judge. Suit in equity to establish and foreclose a mechanic’s lien. Plaintiffs and defendant are the owners of adjoining and contiguous lots fronting upon the same street. In November, 1892, they, with the knowledge and consent of the defendant, built a stone and brick wall thirteen inches wide upon the line between the two lots, so that the same could and would be a wall in common.

<p>2 Evidences plea of guilty. In a civil action for assault, evidence of a plea of guilty on a criminal prosecution is admissible as an admission, but is not conclusive.</p> <p>4 Explanation of. Where, in a civil action for assault, a plea of guilty in a former prosecution is proven, defendant cannot show the circumstances under which he entered his plea, though Code, section 3650, provides that, when any act or declaration is given in evidence by one party, the whole subject may be inquired into by the other.</p> <p>3 Exemplary Damages: fine as bar to. The fact that defendant in a civil, action for assault has been fined in a former prosecution is no bar to an allowance of exemplary damages.</p> <p>1 Appeal: harmless error. A judgment will not be reversed for the admission of immaterial evidence which was not prejudicial.</p> <p>1 Presumptions. The absence from the record of conditions under which prejudice might arise from a particular ruling, justifies the conclusion that there was no prejudice.</p>

— Hon. W. H. Ted-ford, Judge. J. A. Evans and Carr McCloud compose the firm of Evans & McCloud, and were engaged in the business of buying, selling, and shipping horses at Bedford, Iowa.

<p>Appeal from Carroll District Court. — Hon. Z. A. Church, Judge.</p> <p>This is an action of replevin for the recovery of certain goods, or the value thereof, which it is alleged defendant W. H. Potthast obtained by false and fraudulent representations as to his financial condition, which representations were made orally and in writing; that said representations were false, and known to be so by said defendant when made, and were made with the intent of deceiving the plaintiff; that plaintiff relied upon the truthfulness of said representations in parting with the goods, and has elected to rescind the sale; that he has demanded a return of the property. Other necessary allegations, were made. The answer is in denial. It admits, however, the sale of the goods; the election to rescind; that the property is of the value claimed. Denies making any representations except in writing. Avers that he has executed to his co-defendant a chattel mortgage on goods, including those in controversy, and that said mortgage has been foreclosed. In a reply it is averred that said defendant has voluntarily returned to plaintiff a part of the goods he claims, of the value of two hundred and six dollars, and that goods to the value of two hundred and seventy-five dollars, only, have been taken under the writ; that there is a balance due on plaintiff’s account, for goods not found, of seventy-eight dollars. Defendant denies that he ever returned any of the goods. The cause was tried to the court, and a judgment rendered for the defendants for two hundred and seventy-five dollars, with interest and costs. Afterwards, and on the application of the defendants, the sum of two hundred and seven dollars and eighty-four cents was added to said judgment, and a total judgment of four hundred and eighty-one dollars, with interest, rendered against plaintiff. Plaintiff appeals. —</p>

<p>3 Counties: fraud of officer in selling swamp lands. One who takes a quitclaim deed from officers authorized to sell swamp lands in behalf of the county, relying on their false and fraudulent representations that the land inured to the county under the swamp land acts, and misled by their concealment of the fact that the county had been adjudged not the owner, of which adjudication the county had made no record, may recover the consideration paid to it.</p> <p>2 quitclaim Deed: failure of title. One who doth “grant, bargain and sell, and quitclaim” land by a deed containing no covenant nor warranty of title is not liable thereunder for defect or failure of title.</p> <p>1 Election to Stand on Demurrer. Where a demurrer to a petition was sustained immediately before adjournment of the term, and an exception was then taken, the court did not abuse its discretion in permitting plaintiff to have till the next term in which to elect whether to plead further or stand on his petition.</p>

— Hon. George H. Carr, Judge. This proceeding is upon the petition of G. S. Church to set aside a judgment rendered on default against him in favor of these defendants at the preceding term of court, for reasons stated, and that he be allowed to defend against said action. These defendants answered, and the issues were tried to the •court, and judgment rendered dismissing plaintiff's petition, from which he appeals. —

— Hon. T. M. Fee, Judge. Luke Logan and John Morrison were co-executors of the estate of John Logan, deceased, who left surviving certain minor heirs. In December, 1 1891, the executors filed their joint final report, which showed the separate accountings of the executors.

— Hon. Gf. W. Burn-ham, Judge. Action at law to recover an amount alleged to be due the plaintiff: for services rendered in obtaining an application for life insurance. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal. —

Court. — Hon. G. W. Paine, Judge. This is a contest between certain attaching creditors over their respective priorities to a fund now in the hands of the clerk of the Crawford county district court, arising from the sale of certain goods belonging to their joint debtor, Cohn, one of the defendants in this action.

— ITon. G. W. Burn-ham, Judge. Action on an insurance policy, dated February 17, 1894, covering a three-story brick building, under which there was a total loss, July 28, of the same year. The policy requires a true statement of all existing incumbrances to be made in the application, and provides that any misrepresentation or concealment therein shall render the policy void. The application indicated a mortgage of ten thousand dollars, but no other incumbrances.

<p>1 Delivery by Carrier: subsequent assignment ok bill ok lading. Delivery of goods by carrier on. order of the consignee, without presentation of bill of lading, to one who has paid the consignee therefor, vests title as against one to whom, after such delivery, the consignee transfers the bill of lading.</p> <p>2 Same. A carrier, by placing a car of goods on a side track at the point designated as most convenient for unloading, by the person to whom the consignee has sold the goods, and directed the carrier to deliver them without presentation of the bill of lading, and by notifying such person thereof, makes a sufficient delivery to him of the goods as against one to whom the consignee thereafter transfers the bill of lading.</p>

<p>Insurance: notice of accident. A letter by a member of an association insuring against accidents, stating that he had badly sprained his right foot, from favoring his left foot which had .been previously injured, does not constitute sufficient notice of an accident to the right foot caused by stepping from a street car. Such notice must state the cause as well as the nature of the injury.</p>

Appeal 'from, Cedar District Court. — Hon. William P. Wolf, Judge. Action at law to recover an amount alleged to be due for material furnished and labor done on a hotel building. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. —

— Hon. S. M. Elwood, Judge. Action at law to recover attorney’s fees taxed in a certain judgment obtained by the defendant and collected by it. Plaintiff claimed to be the owner of these fees by virtue of an assignment thereof to him from 0. H. Manning. The defendant denied the plaintiff’s claim, and further pleaded a settlement with plaintiff. Defendant also pleaded a counter-claim against plaintiff for money unaccounted for.

— Hon. W. B. Quarton, Judge. Action in equity to enjoin the collection of a Certain judgment from the plaintiff. Decree was entered dismissing plaintiff's petition, from which he appeals.—

— Hon. D. Ryan Judge. The plaintiff claims damages for the destruction of an orchard, some grass, and a fence by fire, which he alleges was caused by the defendant in carelessly and negligently allowing fire to escape irony one of its locomotive engines on October 11, 1892. Defendant denies all of the allegations of the petition. The cause was tried to the court and jury, and a verdict returned for plaintiff for one thousand seven hundred and forty dollars.

— Hon. T. P. Stevenson, Judge. The plaintiff company purchased a quantity of lumber in Minneapolis, and shipped the same to Des Moines, Iowa, over the lines of the Chicago, Milwaukee & St. Paul Railway Company and the Des Moines, Northern & Western Railway Company.

— Hon. C. P. Holmes, J udge. Action at law on a policy of insurance to recover for a loss alleged to have been covered by it. There was a trial by the court without a jury, and a judgment for the plaintiff. The defendant appeals.—

— Hon. Gf. W. Burn-ham, Judge. Action at law upon a policy of insurance issued to Y. Houdeck; loss, if any, made payable to Paulicek as her interest may appear at time of loss. Defense, a breach of condition against incumbrances. Trial to a jury, directed verdict for plaintiffs, and defendant appeals. —

Appeal.from Woodbury District Court. — Hon. G. W. Wakefield, Judge. Action at law to recover the value of seven hundred and sixty bushels of corn, alleged to be due, under a written lease, on account of rent for the year 1894, and for a landlord’s attachment.

— Hon. (xeobg-e W. Wakefield, Judge. Action to foreclose a mechanic's lieu. Judgment and decree for the plaintiff, and defendant appeals. — ■

— Hon. Scott M. Ladd, Judge., Action at law to recover the amount due on a promissory note. The action was commenced in justice’s court against the makers of the note, and William Wilka as indorser. Judgment was rendered in that court against the defendants, and Wilka appealed therefrom to the district court. A trial by jury, had in that court, resulted iñ a verdict for Wilka. From a judgment rendered in his favor for costs, the plaintiff appeals. —

— Hon. A. N. Hobson, Judge. Action by plaintiff for alimony and separate maintenance, and by defendant, in bis cross-petition, for a divorce. Decree was entered ordering the defendant to pay plaintiff six hundred and forty dollars, and two hundred and forty dollars annually for maintenance, and an attorney’s fee of two hundred dollars, and dismissing the cross-petition. Defendant appeals. Later, plaintiff appealed. —

— Hon. S. M. Weaver, Judge. Suit in equity to partition real estate. The lower court sustained a demurrer to the defendants’ answer, and they appeal. —

— Hon. Walter I. Smith, Judge. Action at law upon a promissory note signed by Morris Bros., James Casady, John T. Hazen, R. W. Beebe, W. H. Knepker, F. H. Guanella, and M. Goodwin. Tke defendants Casady, Hazen, Knepker, and Guanella alone answer.

— Hon. J. L. Htjsted, Judge. Thís is an action at law to recover upon defendant’s acceptances of three drafts drawn upon him by the Novelty Iron Works, as follows: One dated September 1, 1893, for one thousand dollars, payable to the plaintiff four months after date, indorsed, “Accepted. C. II. Booth;” and further indorsed, “Demand, notice and protest waived. Jan. 4, 1894. 0. II.

— Hon. William G-. Thompson, Judge. Suit in equity for the construction of the will of C. E. Calder, and for a division of his estate. The lower court sustained a demurrer to the plaintiff’s petition, and he appeals. —

— -Hon. T. F. Stevenson, Judge. Action to recover an amount alleged to be due on an agreement in writing. The defendants pleaded a failure of consideration, fraud on the part of the plaintiff in obtaining the agreement, and mistake in consequence of which the agreement actually made was not incorporated in the writing signed. They asked that the writing be reformed. There was a hearing on the merits, and a judgment in favor of the plaintiff. The defendants appeal. —

— Hon. William P. Wole, Judge. Ellen O’Connell, surviving parent, died-January 4, 1895, leaving an only child, George M. O’Connell, eight years old. She left a will, to which was attached, by way of a codicil, this request: “I wish it to be understood by the court that it is my desire to have the executors of my last will and testament, Hr. A. H. Johnson and Dr. G. R. Skinner, to be appointed guardian of my son, Geo.

— Hon. C. P. Holmes, Judge. The parties, as indicated, are brother and sister, and children of Bridget Carraher, deceased, who died in February, 1894, leaving what purported to be her last will and testament, which was filed for probate; and the defendant, Thomas Carraher, is residuary legatee therein.

— Hon. N. W. Maoy, Judge. Action in equity to establish a lien upon certain lots for a balance due to plaintiff on account for lumber furnished and used in the erection of a dwelling house on said lots. Decree was rendered dismissing plaintiff’s petition, “upon the ground that the plaintiff fails to show that the lumber and material were jiot sold to defendant’s husband, relying alone upon iris credit.” From this decree the plaintiff appeals.—

— Hon. T. P. Stevenson, Judge. Action for the specific performance of a contract to lease a part of a lot in the city of Des Moines. Decree for the defendant, and plaintiff appeals.—

— Hon. William P Wole, Judge. Plaintiee, as assignee of James Adams, brings this action to recover the reasonable value of personal property alleged to have been sold by said Adams to the defendant in 1886. The record shows that the defendant has at all times since the sale been a resident of the state of Maryland. The answer is a denial that anything is due plaintiff.

— Hon. N. W. Macy, Judge During June, and up to July 20, 1893, the plaintiff firm shipped over defendant’s line of road, in carload lots, sand from different points in Iowa to Crestón, Iowa, for which the company received payment.

T. F. Stevenson, Judge. Suit in equity to partition certain real estate of which one Newton Lamb died seized. Some of the defendants pleaded advances made by their ancestor to the plaintiffs and the other defendants, and they asked that these advancements be taken into account in making the partition. The lower court found that certain advances had been made, and passed a decree accordingly. Plaintiffs appeal.

— Hon. A. B. Thornell, Judge. This cáse is incorrectly entitled in the abstract, and consequently in the records of this court, as Sterling Manufacturing Co. v. Pioneer Implement Co., instead of as above.

— Hon. W. P. Bran-nan, Judge. Action to recover four hundred and forty-three dollars and fifty-five cents as freight charges on twelve car loads of ice shipped from Clinton, Iowa, to Kansas City, Kan. After the evidence was introduced, the court directed the jury to return a verdict for defendants, which was done, and judgment rendered thereon. Plaintiff appeals. —

— Hon. William P. Wolf, Judge. The following facts appear from the pleadings and evidence: November 18,1887, the defendant the Iowa State Insurance Company, issued its policy of 1 insurance for one thousand five hundred dollars upon a store building in Fairfax (afterwards called Vanderbilt), Linn county, Iowa, to Joseph Zabortskey. September 4,1888, the property was sold to H. E. Smalley, and the policy assigned to him, and the assignment indorsed upon the policy.

— Hon. J. H. Preston, Judge. Action at law to recover of the late state inspector of oils, one of his deputies, and the sureties on their official bonds, for damages alleged to have been caused by the failure of the deputy to perform the duties of his office as required by law. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal. —

— Hon. Z. A. Church, Judge. Amos W. Basom, husband, and Eva McDonald, and Victoria J. Winnette, daughters, of Sarah L. Basom, deceased, filed their petition in equity against Taylor Ereemont Basom, son and only other heir of said deceased, asking partition of a certain eighty-acre tract of land of which Sarah L. Basom died seized.

— Hon. T. M. Giberson, Judge. Action for damages, on account of the discharge of sewerage * from the defendant city into Indian creek, which creek crosses plaintiff’s land, whereby the water of said creek is polluted and made unfit for use, to plaintiff’s damage. There was a verdict and judgment for plaintiff, from which the defendant appealed. —

— Hon. George W. Burnham, Judge. Aotion at law upon a policy of ñre insurance. Defense, breach of condition against incumbrances, and of a further condition against change of interest, title or possession by legal process, judgment or voluntary act of the insured, or otherwise. Plaintiff’s reply is a denial, and also a claim of waiver. The case was tried to a jury, resulting in a directed verdict for plaintiffs, and defendant appeals. —

— Hon. D. Ryan, Judge. It is charged in the petition that in .April, 1890, D. T. Brown, since deceased, entered into a verbal contract with the defendant, R. B. Zachary, by the terms of which said Brown was to transfer a certain three hundred and thirty-nine acres of land in Jasper county, Iowa, and a certain one hundred and sixty acres of land in Cedar county, Neb., to said Zachary, for an agreed consideration of fifteen thousand dollars, to be paid as follows: Zachary was…

— Hon. B. P. Bird-ball, Judge. The plaintiff is owner of lots 4 and 5, in block 11, of Ft. Dodge, Iowa, fronting to the north, on Central avenue, one hundred and twenty feet, and to the west, on Tenth street, one hundred and forty feet, on which has been erected a large dwelling house. No grade was established on either of these streets before October, 1892.

— Hon. Z. A. Churoh, Judge. Plaintiffs state as their cause of action, in substance, as follows: That on or about January 17,1896, the defendant orally appointed them agents to negotiate and to furnish a purchaser to whom defendant might sell his certain one hundred and twenty-acre farm in Sac county; that it was agreed that plaintiffs should have a compensation of one dollar per acre; that they procured one Berner to enter into negotiation with defendant for said land;,that…

— Hon. George W. Burnham, Judge. Albert Starry died seized of certain real estate, leaving a widow, Emma J., and a daughter, Ethel A. Starry, a minor, to whom belonged the real estate,— one-third to the widow and two-thirds to the daughter. The estate was settled and the administrator discharged prior to January, 1892. January 29, 1892, a petition for the establishment of a public highway across the land referred to was filed with the auditor of Linn county.

— How. W. P. Wolf, Judge. Action to set aside a contract and deed of conveyance and quiet title to real estate. Decree for plaintiff, from which defendant appealed. —

— Hon. Scott M. Ladd, Judge. AcTiONat law to reeoYer an amount claimed, to be due by reason of an alleged breach of contract. There was a trial by the court without a jury, and a judgment for the plaintiff. The defendants appeal. —

— Hon. T. F. Stevenson, Judge. Suit in equity for the construction of the will of Mariah Grimmel, deceased, and to establish and quiet plaintiffs’ title to certain real estate of which she died seized. Issue was taken on certain averments of the petition, and the court rendered a decree upon the statements contained in the pleadings, from which the defendants appeal. —

— Hon. W. P. Wolf, Judge. On May 21, 1894, the plaintiff filed a claim for approval against the estate of O. N. Hull, deceased. The claim, not being' expressly admitted in writing, is to be considered as denied, without any pleading on behalf of thé estate. Code, section 2410. The application was heard by the court, and an order made that the glaim be allowed in favor of the plaintiff in the sum of three thousand, seven hundred and thirty dollars and seventeen cents .

— Hon. William P. Wolf, Judge. On August 22,1895, the plaintiff filed his. petition, alleging, in substance, as. follows: That on October 1, 1894, he leased, by written, contract, set out, to the plaintiff, a certain building, for the period of one year from that date, at the rental of six dollars per month, to be paid at the end of each month. That the defendant failed to' pay the rent for the months of July and August, 1895.

— Hon. W. E. Gbeen, Judge. A. N. and N. A. White sold to Mary M. Haver, wife of George Haver, ten acres of land, for the agreed price of six hundred and fifty dollars, no part of which was paid, and for the security of which a vendor’s lien existed. The plaintiff furnished the material to erect a house and barn on the land, and this action is to establish a lien for the material so furnished, as prior to the lien of A. N. and N. A. White.

— Hon. P. B. Wolee, Judge. Action for goods sol'd and labor performed. Trial to jury; verdict and judgment for plaintiff; and defendants appeal. —

— Hon. C. P. Holmes, Judge. Suit in equity- to foreclose a deed of trust, in the nature of a mortgage, made and executed by Pat and Mary Kenney, to Peter A. Johnson, covering certain land in Dallas county.

<p>Action for New Trial: appeal: Bill of exceptions. Code, chapter 1, title 19, sections 3155, 3158, providing that petitions for new trials shall be tried “as other actions by ordinary proceedings,” applies whether the original action was an ordinary or an equitable proceeding, unless the parties otherwise agree; and hence, the minutes of the evidence taken in the proceedings for new trial, though' certified to by the judge, cannot be considered on appeal, unless signed and filed during the term, or in such time thereafter as may be fixed by the court, as required in respect to a bill of exceptions.</p>

— Hon. William GL Thompson, Judge. The plaintiff in her petition entitles this action as aboye, and alleges as follows: “That, on or about the twenty-fourth day of December, A. D. 1894, the plaintiff was in the defendants’ place of business, in the city of Cedar Rapids, Iowa, for the purpose of making certain purchases; that while she was there, behaving in all respects properly, and doing nothing which would excite any suspicion in the mind of any prudent person, the said…

<p>2 Malicious Prosecution: evidence oe malice. In an action against W and another for malicious prosecution, it appeared that W owned a farm leased to plaintiff; that plaintiff cut some dead timber on the land used as a pasture, and hauled two loads near the house; that defendants unsuccessfully prosecuted him for wilful trespass; and that, prior to the alleged trespass, W and an attorney tried to induce plaintiff to surrender the lease he then had, and take a new one with different conditions. Seld, that it was proper to admit evidence that the attorney then told plaintiff in W’s presence, that, if he complied, he would avoid litigation which would cost plaintiff so much that he would leave the farm without a dollar, and that litigation followed; and it was also proper to admit evidence that the other defendant sued plaintiff and had threatened to harass and annoy him with litigation.</p> <p>1 3 Same. Plaintiff in an action for malicious prosecution based upon his arrest, for an alleged wilful trespass in cutting down and removing timber injured by a cyclone on land rented from defendant, may testify that his object was to make the land available for pasture, for the purpose of negativing a wilful removal of the timber.</p> <p>4 Same. Evidence that defendant in an action for malicious prosecution, prior to the acts on which action is based, advised an employee of the plaintiff, who was a stranger to him, to leave such employment, and offered to obtain him another job, is admissible on the question of motive in causing the arrest, where the parties are brothers.</p> <p>6 Same. Malice essential to an action for malicious prosecution may be, but is not necessarily to be, inferred from want of probable cause.</p> <p>7 Same. The slight value of timber cut and removed from land is relevant upon the question of motive in an action for malicious prosecution based upon an arrest for an alleged wilful trespass in the cutting and removal of such timber.</p> <p>9 Advice oe counsel. Defendant, to avail himself of the advice of an attorney to rebut the charge of malice, need not lay all the facts before him, but he must lay before him all the facts within his knowledge, and which he could ascertain by the exercise of reasonable diligence.</p> <p>5 Evidence: tramps as witnesses. That a witness is a tramp is not ground for excluding his evidence.</p> <p>8 Trespass: wilful defined. The term “wilful” in Code, section 3983, making it an offense to wilfully commit a trespass by cutting down timber on another’s land or carrying the same away, does not necessarily involve an intent to injure the owner of the land, but it is sufficient if the accused knew that the act was a violation of the owner’s rights, or was careless as to whether it was or not.</p>

— Hon. M. J. Wade, Judge. Action to recover damages resulting from an injury to plaintiff received while in the employment of defendant. Trial to jury; vei’dict and judgment for plaintiff; and defendant appeals. —

- — Hon. Gr. W. Burn-ham, Judge. Action at law upon a policy of fire insurance. Trial to a jury. The court below directed a verdict for plaintiff, and defendant 'appeals. —

— Hon. P. B. Wolee, Judge. On the first day of April, 1895, plaintiff filed his petition to set ¡aside the decree rendered' October 30, 1894, and for a new trial on the ground of unavoidable ■casualty and misfortune. Defendant demurred to the petition, which demurrer was sustained, and, the plaintiff failing to further plead, judgment was rendered against him, from which he appeals. —

— -Hon. S. M. Elwood, Judge. The petition shows that P. J. Hamil was sheriff of 'the 'defendant county for the years 1892 and 1893, and as such had charge of the Jail and of the prisoners therein confined; that in taking care of the prisoners there was a large amount of work performed by him, consisting of washing, scrubbing, and cleaning the jail, washing and cleaning the bedsteads and bedding, mending the clothes of the prisoners and the bedding, cleaning and renovating…

— Hon. C. M. Waterman, Judge. Action on a contract of sale and an account for labor performed. The following statement of facts by appellant is conceded, with a slight modification, to he correct; and, as the case presents a legal question based thereon, we give it: “Appellees, 'during the year 1 1894, were engaged in the business of drilling wells and selling and setting up windmills. Their office was in Le Claire, Iowa.

— Hon. William P. Wolf, Judge. Plaintiff, widow of Donald Sutherland, asks that her share of certain real estate of wdiich her husband died seized be set apart to her.

<p>Partnership. A partnership, as against third persons, is created by an agreement whereby the parties of the first part are to furnish a specified sum in installments during the ensuing year for the purpose of manufacturing a specified number of articles of a pattern invented by the second party, and to share the profits in a certain proportion with the second party, notwithstanding a further provision that if the venture is not a success the first parties may declare the agreement of no effect and receive such part of the amount contributed as may be made out of the sale of manufactured articles.</p>

— Hon. C. P. Holmes, Judge. Action at law to recover the value of a sealskin cloak taken from the plaintiff by virtue of a search warrant. The defendants appeal from an order of the district ■■court, which sustained' a motion to strike portions of an answer, from a judgment on the pleadings rendered in favor of the plaintiff, and from an order overruling a motion for a new trial. —

— Hon. W. B. Quarton, Judge. Action at law on a policy of insurance; There was a trial by jury, and a verdict and judgment for the plaintiffs. The defendant appeals. —

— -Hon. J. H. Preston, Judge. On June 18,1884, the plaintiff recovered judgment against Thomas McDonald for two thousand and twenty-eight dollars, with interest at eight per cent, per annum. On November 2,1889, Hannah 0. McDonald, wife of Thomas McDonald, was served with notice of garnishment, and answered, as garnishee, that she was not indebted to her husband. To this answer, plaintiff filed a controverting pleading; and the garnishee a reply.

— Hon. B. P. Birds all, Judge. Action at law on a bond to recover the amount of a tax levied on account of the sale of intoxicating liquors. Demurrers to the petition were sustained, and, the plaintiff refusing to plead further, judgment was rendered in favor of the defendants for costs. The plaintiff appeals. —

— Hon. H. M. Towner, Judge. Action for breach of promise to marry. V erdiot and judgment for plaintiff, and the defendant appealed.—

— Hon. C. P. Holmes, Judge. Action to recover for personal injuries sustained by the plaintiff when driving across defendant’s track at the crossing of east Eighth street, in the city of Des Moines, by reason of alleged negligence of the defendant’s servants in the running and management of a locomotive engine. At the close of the testimony for the plaintiff, the defendant moved for a verdict, which motion was sustained, and verdict and judgment rendered accordingly.

— Hon. W. P. Wole Judge. Action for damages because of a conspiracy to destroy plaintiff’s business as an insurance agent. Judgment for plaintiff, and the defendants appealed.—

— TIon. George W. Burnham, Judge. This is an action against the 'defendant upon a policy of insurance to recover for the loss of a building in the city of Belle Plaine, Iowa. The facts, so far as material to the questions presented on this appeal, will be found in the opinion. The cause was tried to the court and a jury, and a verdict rendered, for the plaintiff under the direction of the court, upon which judgment was entered, and the defendant appeals. —

— Hon. M. A. Roberts, Judge. Action atlaw to compel the defendant to construct and maintain a crossing over its right of way in one of the streets of the city of Albia; and to assess the damages defendant has sustained by reason of the taking. of part of its right of way for highway purposes.

— Hon. G. W. Burn-ham, Judge. Action at law to recover for damages from, fires alleged to have been caused by negligence on tfie part of tfie defendant. Tfiere was a trial by jury, and- a verdict and judgment for tfie plaintiff, Tfie defendant appeals. —

— Hon. C. P. Holmes, Judge. The defendant was indicted and tried for the crime of embezzlement of public money. At the close of the evidence for the state the defendant moved the court to instruct the jury to return a verdict of not guilty. The motion was sustained, and a verdict returned accordingly and the defendant 'discharged. The state appeals.

— JHon. Frank W. Eichelberger, Judge. The defendant was indicted, tried,' and convicted of the crime of burglary, and appeals from the sentence imposed.' —

— Hon. S. F. Balliet, Judge. The defendant was accused of the crime of murder in the first degree, was tried by jury, found guilty, and adjudged to be imprisoned in the state penitentiary at Anamosa during the term of her natural life. From that judgment she appeals. —

— Hon. W. F. Conrad, Judge. The plaintiff, for cause of action, alleged, in substance, as follows: That the defendant is a corporation organized under the laws of the state of New York, and engaged in the business of life insurance; that plaintiff is a physician and surgeon' engaged in practicing at Des Moines, Iowa; that prior to January 1,1891, he was appointed by the defendant to examine applicants for insurance, under an agreement that the defendant would pay him five…

— Hon. M. A. Roberts, Judge. The defendant, Taylor, entered into a written agreement to sell the plaintiff certain land, upon which the latter paid fifty dollars in cash, and was to pay the balance of the purchase price March 1, 1895. This he failed to do, and on the eleventh day of the same month Taylor conveyed the land to Martin. The plaintiff demands specific performance, and the district court so decreed. The defendants appeal.—

— Hon. T. M. Fee, Judge. Pdaintiee is the administrator of the estate of Florence Duffield, deceased, who was his wife. Florence Duffield died without issue, and with only uncles and aunts as her heirs at law, who are the defendants in this proceeding. The estate of Florence Duffield consisted of real estate and personal property.

— Hon. L. E. Eel-lows, Judge. The defendant was indicted for the crime of utteriug and publishing as true a false and forged instrument. The court directed the jury to find a verdict of not guilty, which was done, and the defendant was discharged. The state appeals. —

— IIon. Gf. W. Burn-ham, Judge. The defendants, Edwin Clark and J. B. Story, were convicted of the offense of refusing, as judges of election, to receive a vote which was duly tendered, and from a judgment which required each of them to pay a fine of twenty dollars and costs they appealed.—

— How. Henry Bank, Judge. Defendant was indicted, tried and convicted of the crime of arson, and from the sentence imposed, appeals. —

— Hon. H. M. Towner, Judge. ‘ George Harlan was owner, in his lifetime, of the southeast quarter of section 27 and the north half of the northwest quarter of the northeast quarter of section 34, all in township 73 north, of range 25 west of the fifth P. M., and upon his death his will was admitted to probate, devising the land to his wife during her lifetime, and thereafter to Jeróme Harlan during his lifetime, and upon the death of said Jerome to his other sons, Valentine…

— Hon. M. A. Roberts, Judge. The plaintiff was an employe in the defendant company’s mine, engaged in mining coal. While working in the mine in August 1895, he was injured by slate falling from the roof of the mine, and this action is to recover damages sustained by the injury. The petition charges that while plaintiff was wheeling coal through what is known as “Second West Entry” there was a .fall of slate from the roof of the entry, by which he was injured.

— How. P. B. Wolfe, Judge. This is the second appeal in this case. See 90 Iowa, 54 The action is to recover damages resulting from the death of George H. Oox, which is alleged to have been caused by certain acts of negligence upon the part of the defendant while said deceased was in the employment of the defendant as a locomotive fireman. The defendant answered, denying generally, and trial was had to a j ury, and a verdict returned in favor of the plaintiff for one dollar.

— Hon. N. W. Maoy, Judge. Suit in equity for the foreclosure of a trust deed. The Omaha National Bank, one of the defendants, filed an answer and cross-petition in which it was alleged that the trust deed was void. The decree sustained the claim set up in the answer and cross-bill, and the petition was dismissed. Plaintiff appeals.—

— Hon. W. G. Thompson, Judge. Suit in equity to abate and enjoin a liquor nuisance. Decree dismissing plaintiff’s petition, and she appeals. —

— Hon. Walter I. Smith. Judge. Action in equity to foreclose a mortgage upon real estate. The Frost Manufacturing Company, by answer and cross-petition, claim to have a mechanic’s lien upon the mortgaged property, which claim the plaintiff denies. The issues and facts appear in the opinion. Decree was rendered dismissing said cross-petition and from this decree the defendant company appeals.

— Hon. S. M. Weaver, Judge. The plaintiff is a lady some seventy-four years of age, and the defendant is her son. Plaintiff owned one hundred and eighty acres of land, and some personal property, and was indebted in the sum of over one thousand dollars. On the twenty-ninth of October, 1894, the plaintiff and defendant entered into a written agreement whereby defendant was tó pay plaintiff’s debts, and provide a home and comfortable living for her during her life.

— Hon. C. P. Holmes, Judge. Action in equity to compel the defendants, as co-sureties with John Wilson who paid the debt secured, to contribute their portion oi the amount paid. Defendants answered'setting up certain defenses as will hereinafter appear; judgment was rendered in favor of plaintiff against each of the defendants, and from which they each appeal.

Lot Thomas, Judge. Action to foreclose mortgage. The defendants, in their answer, allege that part of the consideration was the purchase of intoxicating liquors, and that the plaintiff is not a bona fide holder of the note and mortgage The loss occasioned by the burning of the house was paid by the insurance company into court, to be disposed of in the decree. There was a decree for plaintiff, as .prayed, and defendants Lent appeal. —

— Hon. J. L. Husted, Judge. The plaintiffs are Mary A. Morse and some nine others, who own all the land abutting on the north side of O’Neil street, in the city of Dubuque. William White and Emily D. White are defendants; and own all the land abutting on the south side of said O’Neil street. O’Neil street intersects, at a right angle, with Booth street. The City of Dubuque, Dodson & Cousins, and D. W. Linehan are also defendants.

<p>Appeal from Hamilton District Court — Ha'S. B. P. Birdsall, Judge.</p> <p>Action to set aside a deed of conveyance of land. Decree for defendants, and the plaintiffs appealed. —</p>

— Hon. William P. Wole, Judge. Suit in equity to enjoin defendant from trespassing upon the property of one John M. May, and from removing stone therefrom. The defendant denied the plaintiff’s ownership of the land, from which he had removed stone, and averred the fact to be that the land which May claimed to own, and from which he removed the rock, was a part of the bed of the Cedar river, which is a navigable stream.

— Hon. F. W. Eichelbebger, Judge. Action in equity to quiet the title to lot 4, block 1, in the town of Melrose, Monroe county, Iowa, in the plaintiff, as against the defendant. Decree was rendered dismissing plaintiff’s petition, from which he appeals. —

— Hon. C. D. Goldsmith, Judge. Action on a promissory note. Defense that defendant John R. Rudd assigned and delivered to plaintiff a note against one S. E. Rudd for one thousand seven hundred and fifty dollars, secured by a chattel mortgage, executed by S. E. Rudd on a stock of merchandise in the town of Bell, in Crawford county, Iowa; that said note and mortgage were assigned as collateral security upon the note sued upon; and that plaintiff has taken possession of the…

— Hon. Robert Sloan, Judge. This is an action to recover the possession of a certain farm, of which plaintiff holds the legal title, and also to recover damages for a wrongful detention thereof.